Monday, June 23, 2014

One Push-Up Short of an FBI Agent Career


After the terrorist attack of 9-11, Jay Bauer decided that he wanted to become an FBI Special Agent. He had Bachelor’s Master's, and Ph.D. degrees.  At age 35, he was accepted into the New Agent Training Program, a rigorous, 22-week course with academic, firearms, physical/defensive tactics, physical fitness, and practical applications/skills training.  Bauer excelled in the training, and was selected as “class leader” and “class spokesperson” to represent the class at graduation. 

But there was one problem: Bauer could only do 29 pushups out of the required 30.  The requirement for female trainees was 14 pushups.  Being one pushup short of the male requirement, Bauer flunked out of New Agent Training and did not become a Special Agent. Instead, he became an FBI Intelligence Analyst.

Bauer sued the FBI, alleging that the gender-based push-up criterion violated Title VII of the Civil Rights Act of 1964.  That is, he alleged that Title VII prohibits employers from using discriminatory standards on employment-related tests.  The FBI argued that the test was not discriminatory, because there are undeniable physiological differences between men and women, and the push-up standards simply reflected these differences to ensure that males and females were treated equally. 

The court acknowledged that if the FBI’s physical fitness test had used a single standard for both males and females, it would have an impermissible disparate impact on females.  But it concluded that just because men and women are different did not mean that all gender-normed fitness tests were permissible under Title VII. Rather, a fitness test must measure job-related skills and aptitudes. The push-up test measured the upper-body strength required for tasks such as lifting and pushing, but it did not focus on actual job tasks, such as carrying objects weighing a certain number of pounds for a certain period of time. In other words, it did not measure  “qualifications that affect an employee's ability to do the job.”  

In response, the FBI asserted several other arguments without success.  First, it argued that the push up test did affect an employee’s ability to do the job, in that  “those who are physically fit tend to be more productive, use less sick leave, and are better able to handle stressful situations.”  But the Court noted that once trainees graduated from the training course and became Special Agents, the FBI never again in their entire career tested their  physical fitness.  If, as the FBI asserted, physical fitness was essential to performing the tasks required of a Special Agent, then how was it that the FBI had no policy requiring that Special Agents maintain a particular level of fitness once they are actually on the job?  Thus, because the FBI maintained no minimum physical fitness requirements for incumbent Special Agents, the FBI was not able to persuasively argue that physical fitness actually related to the central mission of the FBI's business.

The FBI’s next argument was also unsuccessful.  It contended that the push-up requirement assured that trainees who entered the training program would be sufficiently physically fit to complete the training and not miss any of the important training classes due to injury.  But the court pointed out that this argument made no sense, because the push-up test was not an entry requirement; rather, it was a graduation requirement. Trainees went through the whole 22-week program regardless of whether they could do all of the push-ups.

Many employers, including other federal agencies, the U.S. military, state-and-local governments, and private-sector employers, use physical fitness tests with different passing scores for male and female candidates.  No doubt the government will appeal this decision, but cautious employers would be well-advised to revise their fitness criteria to test actual job tasks rather than an arbitrary number of repetitions of an isolated strength test.

Finally, wouldn’t it have made sense for the FBI to have a waiver program in place so that a highly qualified candidate would not be rejected for want of one push-up?

The case is Bauer v. Holder, No. 1:13-cv-93 (E.D. Va. June 10, 2014)

                 --This blog entry was prepared by Elizabeth L. Newman.  You may reach her at enewman@kcnlaw.com.


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